New Hampshire now governs housing on Portsmouth’s commercially zoned land. One law took effect July 1; the second lands September 13 — after the Planning Board’s August 20 review and during the public hearing window. Eight of the plan’s nineteen actions are unaffected. Eleven need attention, most of them only a narrowing of scope.
Both amend the same provision, RSA 674:80, which is why they are read together throughout this document. Chapter 319 sets the obligation; Chapter 329 sets the terms on which it must be honoured. Where the text below refers to a chapter by number, it means one of these two.
Both bills were still in Committee of Conference on June 4. The House adopted the final report 185–171 — a fourteen-vote margin.
1 — What kind of building. Both laws reach only “multi-family dwelling units” as defined in RSA 674:43, I: structures containing more than 2 dwelling units. Duplexes are outside. Because the test is per structure rather than per project, cottage courts and similar forms may be outside too. Everything in residential districts remains entirely Portsmouth’s call.
2 — What kind of land, and this one is unresolved. The statute reaches “commercially zoned land.” That is a state-law term the Portsmouth ordinance does not use, so the ordinance does not settle it. Where this document says commercial districts it means the districts the ordinance itself groups as Business and Industrial in Section 10.410 — General Business, Business, Waterfront Business, Office Research, Industrial and Waterfront Industrial. It does not resolve the Gateway Neighborhood Mixed Use Districts (G1 and G2), which Section 10.410 groups separately as Mixed Use but which Article 5B equips with Small Commercial Building, Large Commercial Building and Flex Space/Fabrication Building types and a General Commercial Development site type. Nor does it reach the Mixed Residential or Character Districts, which raise the same question and are not assessed here.
Whether G1 and G2 fall inside the statutory term is a legal question this document does not answer. It carries more weight than it sounds like it should: those are the districts where Portsmouth has concentrated its housing standards. The worked example at the end sets out what turns on it.
| # | Action | Status | What to do |
|---|---|---|---|
| 1 | Expand RSA 79-E tax relief | Local | No change. 79-E works by owner application and recorded covenant, not zoning condition — which is why it survives preemption. Worth saying so in the narrative: contract-based tools remain fully available where zoning conditions no longer are. Separately, confirm 79-E’s own 2026 amendments before drafting the zone criteria. |
| 2 | Comprehensive zoning review | Constrained | Split it. The 1–2 year timeframe cannot carry the commercial-district conformance work, which has a September 13 deadline. Run that as an urgent separate pass; leave the general review on schedule. |
| 3 | Allow commercial-to-residential conversions | Superseded | Restate as conformance. Required by state law since July 1. Also flag for applicants: the adaptive reuse exemption from setback, height and frontage is live now and repealed September 13. A project that vests before then keeps it. |
| 4 | Cottage housing and clustered small-lot | Local | No change. These forms spread units across small structures, so they fall outside the more-than-2-units test. Reaches housing the state mandate does not. |
| 5 | In-lieu fee program | Constrained | Scope to residential districts. An in-lieu obligation is consideration for a density bonus; where unit caps are unenforceable there is nothing to trade, and a mandatory obligation is itself barred. On a 0–6 month timeframe, so this decision is live now. |
| 6 | Continue nonprofit fee waivers | Local | No change. Waivers are incentives, not requirements, and work in every district. If the broader targeted waiver program from the June 30 matrix was dropped rather than folded in, note that it worked identically on both sides of the preemption line. |
| 7 | Rezone Office Research and General Business districts | Superseded | The designation is the whole question. Housing is already permitted on these parcels by state law. The published action proposes designations allowing mixed-use and residential development, so the issue is not whether the action says that — it does — but which designation is chosen. A designation that is not commercially zoned land within RSA 674:80 would move these parcels out of the mandate, reducing by-right entitlement rather than expanding it. Whether a Gateway or comparable mixed-use designation qualifies is the gating question at the end of this document, which makes that question load-bearing for this action rather than incidental to it. Test parcel by parcel, and settle the designation question first. |
| Action | Status | What to do |
|---|---|---|
| Expand multi-family zoning | Local | No change — and now the most consequential action in the plan. The state mandate does nothing for the 85.8% of residential land in single-family districts. This is the action that reaches the rest of the city. |
| Review dimensional zoning standards | Constrained | Commercial districts capped. From September 13, frontage, setback and height for multifamily may not differ from what commercial development gets in the same district, and nothing else may be imposed. Residential districts unaffected. |
| Convert single-family homes into multiple units | Constrained | Resolve the scope question first. Two units is outside the statute and stays local. Three or more may be reached by the new nonconforming-conversion right (effective September 13) — but whether that applies citywide or only in commercial districts is unresolved. See the Gaps table. |
| Deploy and expand the Housing Trust Fund | Constrained | Re-model the revenue. If in-lieu fees cannot be required in commercial districts, projected inflow falls. Worth checking before deployment criteria are set. |
| Homebuyer assistance programs | Local | No change. |
| Plan outlying areas for residential growth | Local | No change. |
| Simplify the Form-Based Code | Superseded | Move it up. The most exposed action in the plan. Articles 5A and 5B regulate building type, façade type, lot line buildout, story counts, glazing. In commercial districts those are plausibly barred “additional requirements” from September 13, with attorney’s fees available to an applicant who sues. Simplification there is compliance, not preference — and 1–2 years does not match the exposure. |
| Adjust building height requirements | Constrained | Parity rule applies. In commercial districts, residential height must match commercial. Raise both together or neither. |
| Allow live/work units | Constrained | Threshold matters. A live/work building on commercial land with more than 2 dwelling units falls under RSA 674:80. Below that, and in residential districts, fully local. |
| Preserve existing below market-rate housing | Local | No change — and structurally durable. Covenants, ground leases and deed restrictions are contractual, not zoning conditions. State limits on zoning do not reach them. |
| Create more senior housing | Local | No change. Senior projects of 3+ units on commercial land benefit from the mandate like any other multifamily. |
| Strengthen the workforce housing ordinance | Constrained | Draft as incentive, not mandate. RSA 674:58–61 requires reasonable and realistic opportunity — a duty not to exclude. Compliance on that basis is fine. A set-aside imposed in a commercial district is barred from September 13. |
| Suggested action | Status | Why |
|---|---|---|
| Objective infrastructure standards in site plan regulations | Gap | Infrastructure is now the only ground for denying multifamily on commercial land — traffic and pedestrian safety, water, wastewater. From September 13 a denial that cannot be sustained on those grounds carries attorney’s fees. Published thresholds by district are what make the remaining discretion defensible. This is the successor to the expedited permitting action that came out of the June 30 matrix; with that gone, the plan has no permitting-process item at all. Adoptable by the Planning Board without Council action. |
| Conform commercial-district dimensional standards | Gap | After September 13, any standard exceeding commercial parity is unenforceable and fee-generating. Setting them deliberately in August beats discovering them in litigation. |
| ADU compliance | Gap | The June 30 matrix carried an ADU action; the published list does not. Two live obligations now have no home: the statewide one-space-per-unit cap, which the ordinance still exceeds, and the bar on requiring garaged spaces from September 13. |
| Special Assessment Districts (RSA 162-X) | Gap | The one new financing tool from the 2026 session. Bonds for roads, water, sewer, stormwater and parking improvements, repaid solely by assessments on benefited properties; 60 percent owner agreement; up to 20 years. Simpler than TIF — no increment analysis, no state approval. Addresses the constraint that is now the only denial ground. |
| Status of the co-living conditional use permit | Gap | The plan cites co-living among the housing types recently added to the ordinance. Co-living is allowed only by conditional use permit in the districts where it is permitted at all (Table of Uses 1.71; Section 10.815). Where those districts are commercially zoned land and a co-living structure contains more than two dwelling units, that permit requirement meets the same by-right question as everything in the worked example below. Whether a co-living structure is a “multi-family dwelling unit” within RSA 674:43, I is itself unsettled, and the answer may turn on how units are counted rather than on the use. Worth resolving alongside the gating question rather than separately. |
| Determination on the nonconforming-conversion right | Gap | Does RSA 674:80, VI apply citywide or only in commercial districts? With roughly 70% of single-family-zone parcels dimensionally nonconforming, a citywide reading opens a conversion pathway no action anticipates. A legal opinion, not a study — and it determines how the conversion action above gets drafted. |
Everything above is drawn from the text of the two chapters and the text of the published plan. This section is different in kind. It sets ordinance text beside statutory text and asks what follows. Progress Portsmouth is not offering a legal opinion and has not reached one.
Every figure below is quoted from the Zoning Ordinance as amended through April 6, 2026, with its section number, so each can be checked against the ordinance rather than taken on trust. What the sections say is verifiable. What their interaction with the statute produces is not, and nothing here asserts it.
This section is also conditional on the second limit above. If the Gateway Neighborhood Mixed Use Districts are not “commercially zoned land” within RSA 674:80, none of it arises.
The plan points to these districts itself. Its Zoning Changes section credits the Gateway districts and the Gateway Neighborhood Overlay District with supporting redevelopment and broadening the range of housing types available. That is where Portsmouth has concentrated its housing standards, which is why the question below carries more weight than a definitional question ordinarily would.
From September 13, Chapter 329 permits frontage, setback and height to be regulated but provides that those standards may not differ from what commercial development receives in the same district, and that no additional requirements may be enforced unless the section expressly authorises them. The G1 and G2 districts contain both residential and commercial building types, so the comparison the statute calls for can be made inside a single district. It produces the following.
| Standard | Residential or mixed-use building type | Commercial building type, same district |
|---|---|---|
| Building height | 4 stories or 50 ft Apartment Building · §10.5B34.40 | 4 stories or 50 ft Large Commercial Building · §10.5B34.70 |
| Dwelling units per building | 4 minimum to 24 maximum; 24 without a conditional use permit; up to 36 by permit §10.5B34.40, §10.5B25.20, §10.5B72.10 | Stated as NR — no maximum given §10.5B34.60, §10.5B34.70, §10.5B34.90 |
| Maximum building coverage | 50% Apartment Building · §10.5B34.40 | 70% Large Commercial Building · §10.5B34.70 |
| Minimum open space coverage | 20% Apartment Building · §10.5B34.40 | 10% Large Commercial Building · §10.5B34.70 |
| Maximum building length | 200 linear feet, applying to residential and mixed use building types §10.5B25.10 | No length maximum stated §10.5B34.60 to §10.5B34.90 |
| At development-site scale | 50% coverage, 20% open space General Residential Development · §10.5B42.30 | 70% coverage, 10% open space General Commercial Development · §10.5B42.40 |
Height matches. Coverage, open space and building length do not, and for dwelling units per building there is no commercial figure to compare against, because the commercial building types state no maximum.
Inside the Gateway Neighborhood Overlay the figures change again. Section 10.686 sets four stories, fifty feet and twenty-four dwelling units per building as of right. Section 10.686.10, public realm improvements, raises that to five stories, sixty-eight feet and eighty units on the approval of the Director of Planning and Sustainability; it is a gateway rather than an alternative. One of three further options then reaches six stories, eighty feet and one hundred and twenty units — workforce housing or a payment in lieu under Section 10.686.20, each by conditional use permit, or a land transfer under Section 10.686.30 by Council approval. The overlay separately sets maximum building coverage at 75% and minimum open space at 10% (Section 10.683.10(5) and (6)), which are more permissive than the commercial figures above rather than less; the coverage and open space comparison in the table does not arise inside the overlay.
Two further provisions sit on top of that structure. Section 10.5B73.10 requires that at least 20% of the dwelling units, and no fewer than three, be workforce housing; it is the consideration for exceeding the base cap, and Section 10.686.20 carries the same requirement one layer up. Section 10.686.40 provides that land conveyed to the City in excess of a project’s own requirement earns credit recorded in a Proposed Development Incentive Agreement, that the credit may be sold or transferred, and that the agreement may run up to fifteen years.
If the answer is yes, these follow. They are put as questions because Progress Portsmouth is not in a position to answer them.
Question 7 is the one with a party on the other side of it. The rest can be resolved on paper. That one involves land already conveyed and credits already recorded, and the answer runs in whichever direction the City would rather it did not.
Progress Portsmouth can supply the chaptered text of either law, a side-by-side of the current and September 13 versions of RSA 674:80, or draft language for any of the gaps above.